S v Xaba

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: RD Hendricks DJP and AH Petersen J
• Judgment Date: 03 May 2022
• Docket Number: CA78/2019
• Hearing Date: 22 April 2022
• Court: North West High Court, Mafikeng
• Citation: 2022 JDR 2002 (NWM)

Hendricks DJP and Petersen J:

Introduction:

[1]

The appellant was charged in the Regional court, Klerksdorp with rape in contravention of the provisions of section 3 read with sections 1, 2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 as amended. The charge was further read with sections 94, 256 and 261 of the Criminal Procedure Act 51 of 197 and section 51(1) and Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as amended. The charge was also referenced with Section 120 of the Children's Act 38 of 2005. It is alleged that on the 15th July 2017 and at or near Orkney in the Regional Division of North West, the appellant unlawfully and intentionally committed an act of sexual penetration with the complainant N[....] N[....] by penetrating her vaginally with his

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Hendricks DJP and Petersen J

penis (when committed involving the infliction of grievous bodily harm), without the consent of the complainant.

[2]

The appellant pleaded not guilty to this charge and in explanation of his plea tendered he stated, through his legal representative, that the sexual intercourse was consensual and that it happened around eight o'clock at night on the 15th July 2017. The State led the evidence of the complainant who testified through an intermediary including further. The evidence can be succinctly summarized as follows. E[....] K[....]is the complainant, N[....] N[....]'s, sister, although they use different surnames. L[....] M[....] is their cousin. They were together on the 15th July 2017, when they proceeded to a taxi rank at around ten o'clock at night. Whilst walking, they were approached by two unknown men armed with open knives, who demanded their cellular phones and ordered them to take off their jerseys, which they complied with. The men then left with their jerseys. They screamed at the men who shortly thereafter returned E[....] and L[....]'s jerseys but not the jersey of N[....]. They then ran away from their assailaints.

[3]

E[....] and L[....] outran their assailants, whilst N[....] entered at a nearby home. Help was illicited. E[....] saw N[....] the following morning at the police station. N[....] was crying and sad. She was stabbed on her thigh and breast. Her clothes were bloodstained. She was taken to the hospital by the police and when she returned home she made a report. The complainant, N[....] Mhose testified and corroborated the evidence of E[....] up to the stage when they ran away from the two men. She ran in a different direction to that taken by E[....] and L[....] and was caught by one of the assailants who held her and dragged to a dilapidated house. When she resisted he stabbed her with the knife on her thigh. He forcefully undressed her trouser and panty whilst placing the knife against her neck. She was made to lie on a sponge on her back. He then sexual violated her. When he was done she dressed herself and left with her assailant walking in the direction of Orkney. Whilst walking, he wanted

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to engage in sexual intercourse again. When she refused, they fought and he stabbed her on the arm and the breast.

[4]

They entered a certain house where he ordered her to undress again. The assailant's friend arrived and reprimanded him. He ordered her to get dressed. As there was a blanket on the floor, the friend said that they should not leave but rather sleep. She sat on the blanket and later requested permission...